Healing the Damage: Truth & Repudiation in the Agencies

I have tried to keep track of executive failures over the past eight years in financial, health, and safety regulation. But I have been overwhelmed. As James Galbraith argues in The Predator State, the past administration appointed the most extreme anti-regulatory voices it could find, across the board. Now the Center for Public Integrity has released a report on the results: the “eight-year tenure of the Bush administration was marked by more than 125 systematic failures across the breadth of the federal government.” As they note,

[T}he failures are rooted in recurring themes: agency appointees selected primarily for ideology and loyalty, rather than competence; agency heads who overruled staff experts and suppressed reports that did not coincide with administration philosophy; agency-industry collusion; a bedrock belief in the wisdom of deregulation; extensive private outsourcing of public functions; a general failure to exercise government’s oversight responsibilities; and severely slashed budgets at understaffed agencies that often left them unable to execute basic administrative functions.

The question now is, what to do about it? Responding to the administration’s torture policies and other human rights violations, Jack Balkin and Bruce Ackerman have suggested two approaches. Both of them are worth looking into with respect to some Bush-era holdovers who will be on independent agency boards for years to come.

Ackerman argues that federal judge Jay Bybee should be impeached because of his role in the politicization of the OLC:

When he was promoted to head the Justice Department’s Office of Legal Counsel, he became the final judge of legal matters within the executive branch. Yet his opinion on torture was so poorly reasoned that it was repudiated by his very conservative successor, Jack Goldsmith.

Under the Constitution, impeachment requires a finding of “high crimes and misdemeanors.” This is a high standard. Although Bybee’s opinion fails minimum tests of legal competence, he may have acted in good faith. This should protect him from conviction. But his legal distortions might also be evidence of the abdication of his fundamental legal responsibilities. Instead of engaging in a good-faith interpretation of the War Crimes Act and the Geneva Conventions, he may have merely been responding to political pressures from the White House to liberate the CIA and the military from the rule of law.

The lines between strained interpretations, incompetence, and intentional wrongdoing can be fine. But anyone familiar with the Supreme Court’s discussion of the term “modify” in the ATT v. MCI decision can grasp the limits of agency authority. Agency leadership appointed by Bush (and especially those burrowed in) should be held accountable for crossing that line.

Unfortunately, given the downward spiral of the economy, impeachment proceedings for such players would likely just distract from pressing business at hand. That’s where Jack Balkin’s idea of “Truth and Repudiation” commissions may come in handy. We need to illuminate exactly how industry ties influenced critical decisions in the Bush administration–and how its administrative leaders and allies get rewarded for those decisions later on.

I believe that our economic recovery may well depend on the emergence of commissions like Pecora‘s in response to an utterly corrupted financial order. Ordinary citizens increasingly feel that Wall Street is a shell game, and they are becoming reluctant to invest in anything. We need to fully understand and shame the players who racked up incredible wealth from schemes that skirted the very edge of fraudulence. When criticized, finance leaders now enjoying tens of millions of dollars in bonuses tend to plead, “Well, everything we did was legal.” Perhaps so, but if ordinary citizens believe it can happen again, all dreams of a democratized investor class are kaput.

Frank is Professor of Law at the University of Maryland. His research agenda focuses on challenges posed to information law by rapidly changing technology, particularly in the health care, internet, and finance industries.

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